We have long known that John Ashcroft was not properly read into the illegal domestic surveillance program. Senator Whitehouse suggested as much when Attorney General Gonzales testified in July 2007. And both Gonzales and Robert Mueller revealed that John Ashcroft–from his ICU bed–complained that his advisors had not been able to get read into the program and as a result he was ill-informed about the program.

I also recall that, prior to the time I departed, General Ashcroft briefly mentioned a concern about security clearances for members of his staff regarding the NSA activities that were the subject of the presidential order.

The AG also told [Card and Gonzales] that he was barred from obtaining the advice he needed on the program by the strict compartmentalization rules of the WH.

But the IG Report raises new and different questions about when–and to what degree–John Ashcroft was read into Cheney’s illegal domestic surveillance program. It includes the same details as Gonzales and Mueller have already revealed (though it looks like Gonzales was rather more cautious when speaking with the IG than before, and the IG appears not to have asked Mueller for his version of the story).

Former Attorney General Gonzales and former OLC Assistant Attorney General Bybee both told the DOJ OIG that they did not know how Yoo became responsible for analyzing the legality of the PSP.

[snip]

Gonzales told the DOJ OIG that the Yoo opinions represented the legal opinion of DOJ, and that it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General. Gonzales told the DOJ OIG that Ashcroft complained to the White House that it was "inconvenient" not to have the Deputy Attorney General or Ashcroft’s Chief of Staff read into the PSP, but Gonzales also stated that he never got the sense from Ashcroft that this affected the quality of the legal advice about the program that DOJ provided to the White House. As noted, Ashcroft declined the DOJ OIG’s request for an interview. The DOJ OIG therefore was unable to determine from Ashcroft whether he sought additional DOJ read-ins to assist in the legal analysis of the program, how hard he may have pressed for these additional read-ins, or whether he believed he was receiving adequate legal advice about the program from Yoo alone during this early phase of the PSP.

But there’s one big–huge–tell about whether or not Ashcroft conducted sufficient analysis of this program to approve its legality:

Attorney General John Ashcroft approved the first Presidential Authorization for the PSP as to "form and legality" on the same day he was read into the program.

And again, later,

As noted, the Attorney General was read into the program on the same day he signed the first Authorization as to form and legality.

That’s how at least three different explicit laws protecting your privacy and civil liberties got eliminated in the matter of one day, ladies and gentlemen!

Yoo Appears to Have Been Read In Before Ashcroft

Now, the second reference to Ashcroft’s seemingly insta-approval of the program actually explains why Ashcroft was even asked to give the program insta-approval: neither he nor–at least according to Michael Hayden–Yoo were involved in early planning discussions for the program.

According to the NSA OIG report, the first Presidential Authorization was the product of discussions between former NSA Director Hayden and White House officials. Hayden also consulted with NSA senior technical experts and experienced attorneys from the NSA’s Office of General Counsel. While he consulted with NSA personnel in identifying critical intelligence gaps, only Hayden knew about and participated in the development of the Presidential Authorization by serving as a technical advisor. After the Authorization was signed, NSA attorneys supported the lawfulness of the resulting program. Hayden stated that DOJ did not participate in his early meetings about the NSA’s collection activities.

So, to summarize thus far. Shortly after 9/11, Cheney and Hayden sat down and dreamt up vast new domestic spying capabilities. Presumably, Alberto Gonzales (not exactly a legal heavyweight) and David Addington (a legal heavyweight if you’re a fan of authoritarianism) participated in the planning. But no one representing the rule of law was at the table. Then, after they had planned the program and drafted a Presidential Authorization, they brought it to John Ashcroft who–that very same day–certified its "form and legality."

Ashcroft may or may not have asked, that day, to consult with Deputy AG Larry Thompson and his Chief of Staff David Ayres. But Bush or Cheney said no, and that was that.

Here’s where the timing gets confusing. The timeline shows that the program was authorized–presumably, given the reference to Ashcroft signing "the first Authorization," with Ashcroft’s insta-authorization–on October 4, 2001 (in any case, Ashcroft was telling FBI Head Robert Mueller that the program was legal as early as October 21, 2001). Note that, if the Bush Administration was already using these techniques under FISA’s 15-day exemption, they likely pressured Ashcroft using the expiration of that exemption period. According to the timeline Steven Bradbury gave the ACLU, that very same day as the program was first approved, October 4, Yoo wrote his first memo on the illegal program, for Gonzales, "regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists." Yet the IG Report says, "In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities." Now, Yoo wrote an opinion on FISA on September 25 for David Kris, but that was in no way hypothetical. So there would seem to be at least one other memo, written in September, one Bradbury didn’t mention to the ACLU (which means it must be a doozy, I figure).

All of which, though speculative, suggests that Yoo actually was involved in discussions even before Ashcroft got read in and immediately authorized the program, because he had already written a memo on the program before Ashcroft got read in and immediately approved the program (which presumably happened on or shortly before October 4). This seems to accord with public reports that Addington went around Ashcroft to work with Yoo directly on this. So much for Gonzales’ claim that " it was Ashcroft’s decision as to how to satisfy his obligations as Attorney General." But, because Ashcroft refused to cooperate with the IG investigation, we don’t get details of the degree to which Ashcroft remained ignorant of Yoo’s work with Addington and Gonzales.

The DOJ OIG was also unable to determine whether Attorney General Ashcroft was fully aware of the advice Yoo was providing directly to the White House about the PSP.

Pretty convenient the way that Ashcroft, Addington, and Yoo all couldn’t manage to explain this to the IG, huh?

Note, the approvals for the program after that first month largely consist of Yoo memos written for Ashcroft. The IG Report doesn’t say it, but the November 2, 2001 memo that was the first official memo supporting the program was addressed to Ashcroft. Yoo wrote another, 2-page memo for Ashcroft on January 9, 2002, apparently in conjunction with reauthorization of the program. He wrote a memo on October 11, 2002–that just happened to coincide with Congress passing the Iraq War authorization. The IG Report states that this memo "reiterated the same basic analysis" that Yoo made in his November 2, 2001 memo (though given the timing and the subsequent expansion of FAA to WMD proliferation, I wonder if Yoo extended its application to WMD at that point). Then, finally, Yoo wrote a memo in February 2003 on "the potential use of certain information collected in the course of classified foreign intelligence activities." This appears to be what the IG Report describes as Yoo’s analysis of "DOJ’s handling of PSP information with respect to its discovery obligations in international terrorism prosecutions."

Ashcroft Claims He Wasn’t Fully Briefed on Data Mining Aspects of Program

That all addresses when Ashcroft was read into the program–but not what he learned. At least according to Ashcroft, he was never fully briefed on what are presumably the vacuuming and data-mining aspects of the program (we know this because of all the leaks that make it clear that data mining was the primary issue behind the March 10 confrontation) until after Philbin and Goldsmith replaced Yoo. The IG Report explains:

In a May 20, 2004 memorandum, Ashcroft wrote that it was not until Philbin and later Goldsmith explained to him that aspects of the NSA’s Other Intelligence Activities were not accurately described in the prior Authorizations that he realized that he had been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.

The IG Report reinforces Ashcroft’s point here. It says that Yoo’s memos left out details on the Other Intelligence Activities that were part of the program.

Yoo also discussed in his memoranda the legal rationale for Other Intelligence Activities authorized as part of the PSP. To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe that Congress may restrict the President’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack."

However, as detailed in Chapter Three of the DOJ OIG report, Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities. Yoo’s factual description of these activities was later identified by his successors in the Office of Legal Counsel and ODAG in late 2003 as insufficient and presenting a serious impediment to recertification as to form and legality.

Given that these "Other Intelligence Activities" are almost certainly the data mining and vacuuming parts of the program, it’s not just FISA that Yoo was blowing off here; it was also the Electronic Communication Protection Act and the Wiretap Act. And, by the time Philbin and Goldsmith discovered the discrepancy between what Yoo had described and what was actually being done, it also violated Congress’ explicit prohibition in the 2004 Defense Appropriations Law against DOD conducting such activity.

All of which seems to explain the issues behind Ashcroft’s being read in on the program. He wasn’t involved in the initial discussions about the program (John Yoo may or may not have been). And from that point going forward, he took his understanding of the program from Yoo’s description of it–which left out key details about the data mining and vacuum side of things.

Using the Guy in ICU to Cover Your Legal Shortcomings

In typical fashion, when this all blew up in March 2004, the White House tried to claim that Ashcroft’s approvals of a program he remained partly ignorant about still counted as valid approvals of the program.

The March 11 Authorization differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President’s exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 Authorization.

When Addington wrote this Authorization, of course, the AG in question was still lying in the ICU ward, according to his doctors, legally incompetent to respond. What a convenient way for Addington to finagle retroactive authorization for data mining data from American citizens without any explicit authorization to do so.

If Ashcroft was set up by Addington & friends, why do you suppose that he refused to cooperate with the IG? One would think Ashcroft would have a motive to clear his name and make it clear that he was ill used. Instead, he refuses to cooperate. I suspect there is something Ashcroft knew/said/did that he would prefer never sees the light of day.

It’s kind of weird. I’ve talked to someone in Congress who was mystified by this, bc Ashcroft has been cooperative with Congress both on torture and on this program (he testified before HJC regarding the former and SJC–albeit in closed session–regarding the latter). But there’s precedent–he also refused to cooperate with the IG on–IIRC–the IG report on torture.

It may be that the former Senator just happens to respect congressional oversight or see it as a way to leverage against Bush and Cheney.

But also, keep in mind that he basically green-lighted this whole program based on, if anything, hours worth of reflection. That’s pretty damning, and tot the extent thta it is ultimately declared illegal (by someone like Walker) he will be responsible for it.

He likely got bullied into signing this or just ”trusted” Addington. He was a chump with our laws and our Constitution. I’m not sure I’d want that known if I were him.

Plus, he’s probably still making a killing off of deferred prosecution agreements that he might lose if he were to talk.

Thanks EW, I appreciate the follow up. I suspect all-of-the-above might be important in his refusal to cooperate with an IG. Still, if in the presence of a Special Prosecutor I would bet he would flip pretty quickly. I wonder how much truly damaging information he has…

He likely got bullied into signing this or just ”trusted” Addington. He was a chump with our laws and our Constitution. I’m not sure I’d want that known if I were him.

Yeah, and given his strong response in the hospital once he realized how badly he’d been railroaded, I suspect he’s really mad. Why disclose more details on how he blew it unless he’s sure that Addington, Yoo and Cheney will be prosecuted? He had to understand how incomplete the IG report process would be. I’m betting that if there were actual prosecutions on the line, he’d sing like a bird. In the end, Ashcroft has much potential to be the eventual John Dean. [Remember he also muttered about how history would view their torture working group, too.]

So there may be a hybrid approval process here. It may be that Ashcroft, as required under 12333, would have been certifying reasonable cause (though if that’s true than AGAG’s claim that AG sig wasn’t required is totally bogus, which it is in any case). But not certifying each individual wiretap.

Ashcroft’s song took on special meaning where I work. The common payday quip, “The Eagle Shits Today” morphed, when we spent extravagantly on a set or even when we went from golden time to stupid time into “Let the Eagle Soar”.

Okay, this is probably stupid, but is there any chance Ashcroft is the one who put the limit on the approval? He knew he didn’t know enough, like Jay Rockefeller. So he said he could approve this, but only in terms of form and legality. It might explain why he turned it around so fast.

Yes, there were. What happened is that Gonzales claimed there was no disagreement with the program by bracketing off the ”Terrorist Surveillance Program”–basically pretending the ”Ordinary Citizen Surveillance Progress” was something different, which it wasn’t really.

But the whole TSP admission was a limited hangout intended to hide the degree to which we’re all being spied on.

I beg to differ and present a slightly different take on things. You say:

Shortly after 9/11, Cheney and Hayden sat down and dreamt up vast new domestic spying capabilities. Presumably, Alberto Gonzales (not exactly a legal heavyweight) and David Addington (a legal heavyweight if you’re a fan of authoritarianism) participated in the planning. But no one representing the rule of law was at the table. Then, after they had planned the program and drafted a Presidential Authorization, they brought it to John Ashcroft who–that very same day–certified its “form and legality.”

I would argue that a more likely scenario would be that, at some point in the past well prior to 9/11, the “need” for an enhanced surveillance capability came up. We all remember (more or less dimly) the brouhaha over “Carnivore” – but that was back in Clinton Admin days. The Stored Data Act and the ECPA both antedated 9/11 and, IIRC, even Clinton’s initial election. For some reason, 1986 sticks in my mind as to the Stored Data Act and the ECPA. And, for that matter, you’ll also remember the disputes over the so-called “Clipper” chip, which was supposed to give the NSA and FBI backdoor access to any computer regardless of encryption. That, too, was a 1990s thing.

And, you factor in the fact that for many years prior to assuming office Cheney, Addington, Yoo and the other members of their cabal were dealing with secrets, the lust for authoritarian power, and all that. I suggest a more likely scenario than Cheney, Yoo, et als. cooking this up with Addington in the days following 9/11. After all, even when you’re writing crap – which Yoo was – it takes more time than that.

Basically, in most large law firms and corporations, they keep some companies “on the shelf”. In so many words, there’s a notebook which contains the “corporate kit” of a company – the seal, the shareholder book, some unissued shares, the minutes and resolutions. It sits on a shelf in a room full of similar things. The purpose of this iis to have a company handy when, say, you need a corporation into which to pour all the effort to acquire another corporation. Call it “XYZ Acquisition Corp.” or whatever. It saves time and the worry of having one handy.

Similarly, in government one keeps “on the shelf” various contingency plans for addressing situations which arise suddenly and unexpectedly and require immediate action. Oftentimes there’s a barebones operations plan, a list of people and offices to get up and running and assignments for each, and so on. It varies, but you get the idea.

So, I suggest that prior to 9/11 there was a “study” somewhere in Cheney’s/Addington’s files probably labeled something like “deficiencies in communications intelligence” or “Synthesizing comint” or something like that. What it would have addressed would be the bare bones of the surveillange program – a framework of what changes to make and who to make them. It likely would have been written in the form of a study saying “the current capabilities are deficient because there are gaps here, here and here and we suggest having A address these gaps, B those, and C the other”. This also would have included criticism of the legal framework (or maybe not). But the framework of the compartmentalization was already present there and fully thought through.

We’ve seen how Addington fed boilerplate to the low-level people writing the “scary memos” to facilitate a scary result, which then was presented to the decision-makers to facilitate (or continue) the programs. You can’t just make that up on the fly, no matter how good you are.

So, I’d suspect Cheney and/or Addington on the one hand and Poindexter on the other got together sometime – maybe even before 1/20/01 – to map out how they would manipulate the communications intel architecture to facilitate their plans. Then they got Yoo (known for his reliably pro-Deadeye’s-idea opinionizing) to start opinionizing, “hypothetically” at first. More likely to my eye, the hypothetical nature of the initial opinions was to test Yoo and see whether he would be fully on-board when push came to shove to write the real ones.

And then they put Poindexter in charge of TIA to start making use of the information PSP was generating, until they had to “fire” him when Congress found out. They knew he’d be reliable, otherwise he never would have gotten hired.

But, this was not some on-the-fly post-9/11 thing. This was well-planned out and thought through in detail in advance.

Not saying that may not be the case, but if it is, it is awful lame. How do you certify anything that you know you have not been told the full story on? This isn’t penny ante “gee can a politician take a tax deduction for that expense” shit; this is the very core of the 4th Amendment. You should not be certifying or authorizing diddly squat without knowing everything, every ramification, long discussion and careful deliberation. That seems fairly clear to not be what Ashcroft did at all. I suspect he is more than aware of that and that plays a decent role in him not being more forthcoming.

I think that is clearly possible, if not probable to some extent. Heck, this stuff may, in concept, go back to Bush I days or earlier. the plans may have been waiting for the technology and opportune moment to catch up.

p. 304 of Gellman’s “Angler” describes the Ashcroft bedside scene. (Both Philbin and Goldsmith were also present with Comey, and Mueller arrived later.) When Gonzo tried to get Ashcroft to sign, the book quotes Ashcroft as saying that he should never certified the program in the first place.

“You drew the circle so tight that I couldn’t get the advice that I needed,” Ashcroft said, according to Comey. [Ashcroft] knew things today… that he should have known before they first asked for his signature. If it were up to him now, he would refuse to approve…” (But he gestured to Comey, saying ‘There is the attorney general’.)

Then it quotes Goldsmith as being afraid that the effort of this unexpected encounter might result in Ashcroft’s death.

But it looks as if Ashcroft’s first wake-up call was around Nov 10, 2001 when objected to the idea of military commissions and Cheney basically told him that it was a done deal and to take a hike. From Gellman’s narrative, that the day Ashcroft learned that Yoo had been working with the WH (being his back, so to speak). And in that Nov 2001 meeting, Gellman reports that Ashcroft was so angry he was shouting down Cheney.
————–

It’s hard to believe that Ashcroft understood what ‘data mining’ was, nor knew what questions to ask back in 2001.

2001 was early in the days of ‘data mining’ if memory serves me correctly. IIRC, there had been talk about it in the late 1990s, but I doubt the infrastructure was really in place until 2001. (**If** I’m correct, it raises another question about how much ‘data mining capability’ was built into that OVP contract awarded to Brent Wilke’s MZM contract to ‘furnish’ Cheney’s office, eh? Did Cheney have his own private little Listening Post set up at OVP? Or did he task that out to Scooter or Hadley?)

Summary: it’s easy to castigate Ashcroft, but I think the whole concept of ‘data mining’ was so far out of his conceptual range and experience – he doesn’t seem like a telecomm guy – that he didn’t even grasp the implications and just wanted to do his best to ’stop terrists’. I think this may quite likely be an instance of a man with good intentions who got played by thugs; in that March 2004 hospital room, it’s my view that he went some distance toward redemption.

I don’t know that the concept of data mining was so abstruse or arcane that Ashcroft couldn’t grasp it, nor that he didn’t know what it was prior to 2001.

A friend working in computers for a large company was building and manipulating databases for what was, effectively, data mining, back in the late 80s. They called it cluster marketing or something similar, but the boast was that they could tell what brand of cookies you would buy based on your zip code. At that time, that was pretty good. All that’s happened since is further refinement based on greater stocks of data and better computers.

Ashcroft, IIRC, had hired Rove to work on his campaigns prior to being AG. Rove, you should recall, made his bones in two places – dirty dealings and direct-mail marketing of candidates. I’m sure Ashcroft knew – at least in the broader sense – what data-mining was.

I have to agree… These guys have always been fascinated with the idea of having the keys to the kingdom — and 9/11 was a good excuse to use them! Although, I have to wonder if they did not already have some things working even before then. Their element work behind the scenes regardless of who is in power — and I have to wonder what information they already had to make senators and congressmen dance to their tunes… We have had these discussions before, but I find it absolutely amazing that AT&T has pulled all its pieces back together again after it was supposedly dismantled years ago.

Not saying that may not be the case, but if it is, it is awful lame. How do you certify anything that you know you have not been told the full story on? This isn’t penny ante “gee can a politician take a tax deduction for that expense” shit; this is the very core of the 4th Amendment.

You make a good point, but in terms of how people process information if Ashcroft categorized this as ’stopping terrorists,’ and had very little technical interests or proficiency, then he would have been totally (and innocently) blindsided and not realized what he was actually approving. If he thought it was ‘phone’ and no one told him it was sat-phone-digital then he was a sitting duck.

Well, I can think of NO reason NSA would not fully implement some of these systems with fully overseas (to/from) targets prior to 9/11, going back as far as they had the tech and opportunity to implement. You can probably remember Ollie North referring to special collection operations that allowed them to monitor banking transactions during the Iran-Contra hearings.

They also needed to wait until enough information- blackmail- could be assembled to get agreement from the necessary implementors. Looking busy while ignoring Richard Clarke so something could happen to dramatically set the stage for its public debut was also an ingredient.

1. This is a high-level job, and in a high-level job you have high-level subordinates. Got got them because you trusted them – or the headhunter told you they were really qualified for the job. Yoo had a great resume and said it was “good”, so you believed him. And, FWIW, as a Senator, Ashcroft did not spend all day reading cases and studying Presidential power. I would be he had not read a whole law review article on any topic for years prior. It was all reports and memoranda from subordinates who are supposed to – and usually do – know their own little area intimately and want to do well.

2. Ashcroft was an elective official who was in his first (IIRC) executive job. His personality, experience and knowledge was geared toward getting elected – not toward the subtleties of Constitutional law and not toward saying “no” to someone of his own party who still had a re-election ahead of him.

3. The mindset in DoJ and elsewhere was not “how do we do this within the law?” but rather “what else can we do to get these mother-f’rs”. You remember Cofer Black and his “heads on spikes” comment. You remember the CIA getting a supply of dry ice sent to Afghanistan so they could present Bush with bin Laden’s head on a platter without it getting too nasty on the way back. Any shying away from the most extreme form of retribution was seen as both weak and indicating a lack of resolve (or, worse, loyalty) of the shying person’s part. And this was among the most hardcore of hard core Rethugs.

Ashcroft, IIRC, had hired Rove to work on his campaigns prior to being AG. Rove, you should recall, made his bones in two places – dirty dealings and direct-mail marketing of candidates. I’m sure Ashcroft knew – at least in the broader sense – what data-mining was.

So Rove had him over a barrel.

Your point is well taken, but I know people who’d look at you with a blank stare if you asked them about ‘data mining’ even today. And one of them is an attorney. My point is that I see plenty of room for completely ‘human’ errors. But the spring and early summer of 2004 time period was also a time that is very, very interesting if you look at recent updates EW’s made to her Ghorbanifar Timeline.

How ironic would it be if Ashcroft was nearly expiring in a hospital bed b/c he wouldn’t sign an extension for surveillance, around the time that Chalabi was tipping the Iranians off to the fact that the US could read their signals? (I don’t know at what point Chalabi tipped them off, but it hardly seems like the act of anyone fond of the US, now, does it? And at the very time that Bush’s buddies are nearly killing his AG in a hospital bed, the references to OVP involvement in meeting with Ghorbanifar is being deliberately hidden?

June 2, 2004: NYT reports that Chalabi alerted Iran that US had SigInt code
——————————-

I’m glad Whitehouse is on the case, and I hope he has some heavy lifters helping him.

Because if I contrast the time period of spring 2004 in DC and in Iran, it’s so far beyond bizarre that my skin crawls. But it sure looks as if Ashcroft had very good reason to be suspicious of the WH.

I can see him hiring Rove for that part of the campaign without having any idea of what was actually involved. It’s called ‘hiring someone with experience/expertise’. (You don’t have to know in detail how a car works, in order to drive one, and, if someone else is driving you, you really don’t need any detailed knowledge.)

Not necessarily that “Rove had him over a barrel”, but rather that he would/could have been aware of what data mining was by being exposed to it, and its products, in the cntext of Rove’s campaign work with/for him.

Scribe@16 Say maybe they geared this up starting just after the infamous ‘OK, boys, you’ve covered your ass’ briefing of Bush on Al Qaeda’s plans? I think that would have given them enough time to have it ready when 9/11 came around.

I agree that data mining was in no way obscure by 2001. My hubby was doing a lot of it in a grad program in CompSci. And remember–they got this from phone companies, who had been doing it for decades beforehand.

That said, I can assure you that people like Ashcroft would have a difficult time understanding that. Hell, look at just the reporting on this program–there was sustained disbelief that data mining could have been the big problem, largely bc reporters covering the story didn’t understand what it could do, and (more importantly) how close good data mining (which this is not) can be to actually proving something.

And if you need any better demonstration of how we might expect Ashcroft to respond, we can look at Jello Jay’s own words when he learned of the data mining. He wasn’t really sure what it meant, and asked to talk to advisors.

Informed approval, informed advice and consent, informed assumption of the risk, informed legal analysis based on full disclosure? Not in this government.

Yoo was grossly insubordinate in his machinations with Addington. He knew he would be out of government immediately if he balked, so he made his pact with Mephistopheles.

Ashcroft knew he was approving unknown unknowns, to paraphrase the ridiculous Rumsfeld. He was reckless, at best, in his management of both the DoJ and the enforcement of US laws. He knew that if he demanded the information necessary to do his job, and that key subordinates also be read into it so that they could properly advise him, he would no longer have his job. He, too, made his pact with Mephistopheles.

His rewards are still coming, via millions in fees from government contracts to “oversee” private corporations’ compliance with secretive agreements to “reform” their conduct, made in lieu of public criminal or civil trials.

Gross incompetence and reckless disregard for the law and basic management principles ought not be a defense for Mr. Ashcroft, any more than that John Yoo’s intentional misreading of the law should create “legal opinions” that shield high or low from their criminal conduct.

I can almost see fit to give these guys a pass in the fear of the aftermath of 9/11; however they were still at it full bore long after that wore off. Marcy’s timelines show they never, at any significant point stepped back from the aggressiveness that was present on 9/12.

When did Ashcroft refuse to let the WH cram Yoo down his throat? Wasn’t that when Bybee got his judgeship and the WH/OVP wanted Yoo as head of OLC — and Goldsmith ended up with the job? So by spring of ‘03 Ashcroft didn’t want any part of Yoo, a full year before the hospital escapade?

And scribe: IMVHO, PNAC was precisely the vehicle for the “contingency” preparations you’re talking about.

Well, it always sort-of looked like personal pique, at Yoo dealing direct w/Addington (although when did Ashcroft become aware of THAT behavior?) and Ashcroft feeling like Yoo didn’t give him his due props. BUT — if Ashcroft didn’t trust him that early on, why would he keep taking his legal analyses on faith? (because by then the memos weren’t even coming “as-if” from Bybee)

I’m very interested in hearing more details about what went into the first time Ashcroft signed off. It’s pretty easy to imagine a conversation along the lines of,

“Hi John, this is Addington. We need you to sign this. Today. Because we’re already doing it, and the exemption expires tomorrow. Oh, and if for any reason you won’t sign it today, we’ll fire you. Today. And we’ll get someone else to do it.”

hey BMAZ thanks for the welcome back! I’ve been guiltily lurking but too busy to post lately. I’m taking the Oregon bar exam in less than three weeks. Don’t have a job yet, and the legal market in the Pac NW is *terrible* right now. Deferred and withdrawn offers in Portland and Seattle, just like all the other big cities, and all the job posts want 3-5 years of experience. So even though I’m sort of frantically cramming for the test, I’m very much at loose ends about what I’m going to do afterwards.

On the other hand, baby is doing great, we’re happy and healthy, and it’s finally raining today in Eugene. So everything is as good as it can be, i guess

scribe @ 16 brings up Carnivore and contingency plans already on the shelf.

This goes for legislation, too. Though the Patriot Act was passed in late October, it was introduced much earlier (not sure when, but Feingold held a hearing about it on October 3). DoJ didn’t write all 342 pages of the Patriot Act in the two weeks after 9/11, it was able to use stuff it already had on the shelf.

Ashcroft was an elective official who was in his first (IIRC) executive job. His personality, experience and knowledge was geared toward getting elected – not toward the subtleties of Constitutional law and not toward saying “no” to someone of his own party who still had a re-election ahead of him.

Comey might disagree with this. Ashcroft did say ”NO!”, not that it mattered. Ashcroft did seem to protect and defend the Constitution this time. Of course he was stoned on drugs at the time.

Card and Gonzales arrived a few minutes later, with Gonzales holding an envelope that contained the executive order for the program. Comey said that, after listening to their entreaties, Ashcroft rebuffed the White House aides.

”He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me,” Comey said. Then, he said, Ashcroft added: ”But that doesn’t matter, because I’m not the attorney general. There is the attorney general,” and pointed at Comey, who was appointed acting attorney general when Ashcroft fell ill.

I suspect he finally came around to doing his job after he concluded he needed to leave it. He wasn’t very persuasive, knowledgeable or thorough; quite the opposite. Not that Libby, Addington, Cheney or Rumsfeld would have let that stop them. They would have quickly engineered an ouster. But like Colin Powell, it took him too long to come to that realization and he did little but leave after he did.

That he accepts several million in de facto hush money via his “consulting and monitoring services” firm is testament to his attempting to remain in the game, and says nothing attractive about his business or legal ethics.

From news reports at the time and since, it seems that Ashcroft cottoned on to the fact that Yoo wasn’t working for nor was he loyal to Ashcroft, regardless of the quality of his legal work, which was hardly exemplary.

NSA could have started the call database before 2001, too, without needing black rooms or other cooperation from U.S. telecoms.

The processing of Call Detail Records into phone bills was outsourced by U.S. telecoms to an overseas firm in Israel called Amdocs. Back on Dec. 13, 2001 in part two of the infamous now-removed four part series on Israeli spying by Carl Cameron at FOX News, NSA’s awareness of the overseas availability of the call record data was documented:

In recent years, the FBI and other government agencies have investigated Amdocs more than once. The firm has repeatedly and adamantly denied any security breaches or wrongdoing. But sources tell Fox News that in 1999, the super-secret National Security Agency, headquartered in northern Maryland, issued what’s called a Top Secret Sensitive Compartmentalized Information report, TS/SCI, warning that records of calls in the United States were getting into foreign hands – in Israel, in particular.

Investigators do not believe calls are being listened to, but the data about who is calling whom and when is plenty valuable in itself. An internal Amdocs memo to senior company executives suggests just how Amdocs generated call records could be used: “…widespread data mining techniques and algorithms combining both the properties of the customer (like credit rating) and properties of the specific behavior…” Specific behavior such as who the customers are calling.

The Amdocs memo says the system should be used to prevent phone fraud. But U.S. counterintelligence analysts say it could also be used to spy through the phone system. Fox News has learned that the NSA has held numerous classified conferences to warn the FBI and CIA how Amdocs records could be used. At one NSA briefing, a diagram by the Argonne National Lab was used to show that if the phone records are not secure, major security breaches are possible.

(My bold.)

Well before 2001, if the NSA wanted to start a database of US call records it knew that the information was available from overseas sources, allowing an end run around prohibitions against eavesdropping within the U.S.

Some of the DC tech folks went way, way out on a limb and were leaking that it was every electronic communication that was being tapped by ’04 if not sooner. The outrage appeared in ’04, the systematic info vacuuming and authorization for same were likely before that.

Ya know I have to feel a little sorry for Ashcroft here. He signed on to help defend the righteous Republican party against the Democratic wackos, not to sell the Constitution and privacy rights down the river. Once he realized what his team was doing, he rose to the occasion. I give him enormous credit for standing up to these war criminals.

I’m a little unclear about how exactly Mr. Ashcroft “stood up” to Team Cheney. He left after one term, for reasons he would not speak about. We know now that it may have had much to do with Team Cheney’s excesses and its ability to manage the DoJ from the White House and out from under Mr. Ashcroft. Had he stood up to them, he would have articulated those reasons, as would Mr. Powell, who left at about the same time. Neither did.

Mr. Ashcroft, in fact, has been handsomely rewarded for not speaking out, in the guise of his “oversight” contracts relating to the privatized and largely secret efforts to “reform” illegal or civilly improper corporate behavior.

As to Marcy’s statement on whether Yoo wrote another memo in September 2001, he did, but perhaps this may not be what you’re looking for or maybe you covered it already and in that case apologies in advance.

On September 21, 2001 Yoo wrote a 20 page memorandum in response to question posed by Timothy Flannigan about ”hypothetical” scenarios regarding the Fourth Amendment and domestic military operations. In the memo, Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

”We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection,” Yoo’s memo stated.

Yoo also wrote in the Sept. 21, 2001, memo that domestic surveillance activities, such as monitoring telephone calls and without a court’s permission, might be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.

Hey folks. It is sept 21, not 25. I an working on scanning it now, but in the meantime this Oct 24 2004 story from the NYT may be helpful as it discusses the memo in relation to the Fourth Amendment. http://query.nytimes.com/gst/f…..gewanted=3

In addition to “certifying” in some way “the program(s)” keep in mind that Ashcroft was also subject to firewall orders from the FISCt. How do you comply with the court’s order if you don’t look at the program? And “duh, I never bothered to look” isn’t a grounds for getting around contempt and other liability for violation of the court’s orders. And you go around violating court orders – you end up having license problems, which dries up a lot of the income going to Ashcroftco these days.

Also, wasn’t there reporting at some point that these certifications were in the nature of military orders? I’m sorry, but without much due diligence needed, we have pretty specific case law that the 4th amendment isn’t suspended in a time of war. Yoo opining to the contrary is wrong on its face.

I wonder, as well, now that more is coming out, to what extent the program involved not just violating the FISCt’s firewall orders, but also violating FISCt minimization orders. I’ve wondered how someone gets a full transcript of non-target US Citizen and Member of Congress and ranking member of INtel Committee Harman’s “end” of the conversation with a targeted contributor, all with no apparent minimization efforts. Gets it and trots it around. My spec when that came out was that Harman would probably feel free to call the bluff, bc there’s likely no way for anyone to produce that “transcript” without simultaneously proving that they were violating court orders, but I wonder how extensive those violations were?

IOW, it is one avenue for telecommunications companies and others to get authorizations under a “military order” that purportedly gives them power to disregard FISA statutes and other unframed, not ruled upon by a court, th amendment concerns – but that avenue (power to trump statute) would not preclude another avenue (power to trump courts). So why wouldn’t a part of the program include ability to override minimization requirements on Exec whim? Or even Exec whim delegated down the line to a floor supervisor? The lawyers involved in advising that laws can be disregarded have less potential personal exposure than the ones who advise that court orders can be disregarded. No pardon or non-prosecution agreement can preserve the law license of those who deliberately disregard court orders if it comes out and if the court chooses to take action. And there’s not necessarily a statute of limitations for court action on finding out their orders were violated deliberately. (See why I think any mandate that isn’t broad enough to explore all aspects of Exec branch interactions with the other branches on the GWOT programs will fall short? A court can’t act on what it doesn’t know).

Skipping tracks, I don’t buy that Ashcroft didn’t know all he says he didn’t know and I think he’s worried about getting into the weeds on that, given the kinds of discussions that might have been had in Principals meetings and even in his knowledge of things like deliberately cutting out some (like Powell and Taft) who should have been included in Principals info that was circulated. When you know you have as one of the Principals and his advisor guys who are well versed with the military and the problems that would emmanate from saying that the President’s CIC powers mean he can violate domestic law and abrogate the Congress and the Courts at will — you have to cut the out of the loop. You don’t want Powell saying things like the military is subject to civilian government and the President as CIC is only a part of that military apparatus taht is subject to civilian govt and you can’t enact affirmative violations of domestic law under the guise of “military orders.”